Page:Harvard Law Review Volume 4.djvu/278

262 262 HARVARD LAW REVIEW, and the only one which as yet has proved successful, and that the poles and wires are in the present state of thie art necessary to the successful operation of the defendant's railway by electricity. They form part of the means by which a new power, to be used in the place of animal power, is to be supplied for the propulsion of street cars, and they have been placed in the street to facilitate its use as a public way, and thus add to its utility and convenience. . . . The whole matter may be summed up in a single sentence : the poles and wires have been placed in the street to aid the public in exercising their right of free passage over the street. That being so, it seems to me to be clear beyond question that the poles and wires do not impose a new burden upon the land, but must, on the contrary, be regarded both in law and reason as legitimate accessories to the use of the land for the very purposes for which it was acquired. They are to be used for the propulsion of street cars, and the right of the public to use the streets by means of street cars, without making compensation to the owners of the naked fee in the street, is now so thoroughly settled as to be no longer open to debate. It would seem, then, to be entirely certain that the occupation of the street by poles and wires takes nothing from the complainant which the law reserved to the original proprietor when the public easement was acquired. The Vice-Chancellor cited with approval the cases above referred to in Rhode Island, Kentucky, Ohio, and Indiana, and in the F'ederal court, and said the question where there was a new burden Must be determined by the use which the new method makes of the street, and not the motive-power which it employs in such use. And this principle, he said, Exhibits in a very clear light the reason why it has been held that tele- graph and telephone poles do impose a new burden, since they are placed in the street, not to aid the public in their right of free passage, but in the transmission of intelligence ; and although streets are used for this purpose in carrying the mails, yet this mode differs so essentially from their general and ordinary use, that the general current of authority, with an exception in Massachusetts, has delared that it does not come within the public easement. The Vice-Chancellor added, that the poles in the present case served an ordinary public purpose in lighting the streets, and also that with respect to danger from the current, the proofs showed that the current employed might be used with entire safety to everybody. In answer to the contention that the poles ought not